Out of curiosity, what was your take when Jerry Brown spoke out against Prop 8 after it passed? He got a lot of grief for that, as the Attorney General is expected to defend and uphold the laws of the state.
This is pretty similar, as annoying as that might be.
There is a huge difference in my mind between an attorney general talking (but not actually doing anything) about a possibly unconstitutional proposition passed by the Great Unwashed and the Commander in Chief not standing behind his promise to change rules which he has the final say in. Rules he promised to change 18 months ago. We're at war, and in a time of war the President trumps everyone regarding armed forces policies.
Except that it's not just a matter of armed forces policy, sadly it's a matter of civilian law, passed by Congress. Obama could probably try to force the issue, but that suggests that he (and we) should buy into the whole unitary executive bullshit that Bush forced on us.
The Justice Department is in a not very fun position here, they have an obligation to uphold and defend the law, even if they don't agree with it.
That said, Obama can still make his own opinion known... taking the bully pulpit as it were.
Congress has no power here. The Constitution is clear about the President's absolute power to direct the armed forces. As Chief Executive, Obama is in charge of the Justice Department, and is well within his rights to tell his people to back off. And he hasn't made his opinion known - so three strikes.
It's not as clear as you'd like it to be. Congress passed and Clinton signed HR2401 into law. The Obama Administration's take is that Congress has to repeal the policy. Legal opinions as to whether the President can repeal a law that restricts Executive Powers (such as military policy) is mixed. HR2401 should have never been passed to begin with. And perhaps Obama, as a legal scholar, should have considered *then* whether he thought it would be legal before he promised something.
The official stance from the Justice Department is that they have a traditional duty to defend and uphold all laws and that they do not get to pick and choose which laws to uphold.
they do not get to pick and choose which laws to uphold. That is total BS. The Justice Department regularly refuses to take up cases, the same way the Supreme Court does. The only defensible reason they coud give, IMHO is they needed a Supreme Court decision on such a basic issue. But I don't really buy that either, because the Supes have the power to pull a case in for review from any Federal court.
As for HR2401, it would not be the first time Congress has passed and a President has signed a law which is unconstitutional.
The President cannot repeal any law. However, he can give an order to the armed forces as their commander in chief which contradicts a law, and let the courts decide which branch of government is right.
My understanding (from a lawyer) is that the issue here isn't DADT, it's that a district court judge handed down an injunction against the entire federal government and military, which goes *way* beyond her jurisdiction, because it wasn't a class-action suit. If the DOJ *doesn't* appeal, it sets a truly horrible precedent--that a single district court judge can effectively set federal policy.
She *did* have the authority to declare the law unconstitutional and to specify that it couldn't be enforced against the plaintiffs, but since it wasn't a class-action suit, she didn't have the authority to declare that it couldn't be enforced in another part of the nation which wasn't part of her district.
Now, does that mean I like the fact that Obama hasn't worked harder to get rid of DADT? Not in the slightest. I'm seriously pissed that he and the Dems in the Senate keep insisting that they can't do anything because they only have a majority and not a super-majority. But in this particular case, I can see where it really does need to follow correct legal procedure.
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Date: 2010-10-15 04:03 am (UTC)This is pretty similar, as annoying as that might be.
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Date: 2010-10-15 04:22 am (UTC)no subject
Date: 2010-10-15 04:39 am (UTC)The Justice Department is in a not very fun position here, they have an obligation to uphold and defend the law, even if they don't agree with it.
That said, Obama can still make his own opinion known... taking the bully pulpit as it were.
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Date: 2010-10-15 05:56 am (UTC)no subject
Date: 2010-10-15 06:15 am (UTC)The official stance from the Justice Department is that they have a traditional duty to defend and uphold all laws and that they do not get to pick and choose which laws to uphold.
http://www.law.cornell.edu/usc-cgi/get_external.cgi?type=pubL&target=103-160
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Date: 2010-10-16 12:25 am (UTC)That is total BS. The Justice Department regularly refuses to take up cases, the same way the Supreme Court does. The only defensible reason they coud give, IMHO is they needed a Supreme Court decision on such a basic issue. But I don't really buy that either, because the Supes have the power to pull a case in for review from any Federal court.
As for HR2401, it would not be the first time Congress has passed and a President has signed a law which is unconstitutional.
The President cannot repeal any law. However, he can give an order to the armed forces as their commander in chief which contradicts a law, and let the courts decide which branch of government is right.
no subject
Date: 2010-10-16 02:40 am (UTC)She *did* have the authority to declare the law unconstitutional and to specify that it couldn't be enforced against the plaintiffs, but since it wasn't a class-action suit, she didn't have the authority to declare that it couldn't be enforced in another part of the nation which wasn't part of her district.
Now, does that mean I like the fact that Obama hasn't worked harder to get rid of DADT? Not in the slightest. I'm seriously pissed that he and the Dems in the Senate keep insisting that they can't do anything because they only have a majority and not a super-majority. But in this particular case, I can see where it really does need to follow correct legal procedure.